Fifth Circuit Blog

Wednesday, April 23, 2008

Warrantless Arrest Supported By Probable Cause, But Which Violates State Law, Does Not Violate Fourth Amendment

A police officer has probable cause to believe that a person has committed a crime, but state law does not permit the officer to arrest the person for that particular offense. The officer arrests the person anyway, and performs a search incident to arrest. Drugs are found, prosecution ensues. Did the arrest, and search incident to arrest, violate the Fourth Amendment proscription against unreasonable searches and seizures?

Not according to the Supreme Court's decision today in Virginia v. Moore, which held that "[w]hen officers have probable cause to believe that a person has commited a crime in their presence, the Fourth Amendment permits them to make an arrest, and to search the suspect in order to safeguard evidence and ensure their own safety[,]" even if state law does not permit officers to arrest a person for that particular offense.

The Court first noted the lack of any "historical indication that those who ratified the Fourth Amendment understood it as a redundant guarantee of whatever limits on search and seizure legislatures might have enacted." Absent such history, the Court turns to the general reasonableness balancing test, which turns out exactly how it usually does: "when an officer has probable cause to believe a person has committed even a minor crime in his presence, the balancing of private and public interests is not in doubt. The arrest is constitutionally reasonable." Although a State is certainly free to provide more protection that the minimum required by the Fourth Amendment, "its choice of a more [protective] option does not render the less [protective] ones unreasonable, and hence unconstitutional."

The decision was 9-0, with Justice Ginsburg concurring in the judgment only. Her principal point of disagreement is with the majority's characterization the Supreme Court's 1948 decision in United States v. Di Re. Law professor Orin Kerr has discussed that question extensively over at the Volokh Conspiracy, so head over there for the low-down on Di Re and what it has to do with Moore.

This time around the case is Chambers v. United States (No. 06-11206), and the felony at issue is failure-to-report escape. One might have expected that the case would be GVR'ed for reconsideration in light of Begay, but evidently there are at least four justices who feel that Begay (and James) provide insufficient guidance on this question. Looks like Justice Scalia was right when, in the course of criticizing the majority opinion in James for its lack of guidance to lower courts, he predicted that "[i]t will take decades, and dozens of grants of certiorari, to allocate all the Nation's crimes to one or the other side of this entirely reasonable and entirely indeterminate line." For those of you keeping score at home, we're up to two years and three grants, so far.

Thursday, April 17, 2008

Be Prepared

Don't go to court unprepared. If there's a key Supreme Court precedent relevant to you case, read it. Not only do you owe it to your client, but you also don't want this to happen to you:

Phipps: . . . so that’s about all I have to say, Your Honor. I don’t have anything other than that. You know, my client lives in Chicago. We communicate occasionally on the phone, she sent me the documents. And um, she’s a doctor. She continues to earn a living, and she’s generally unavailable if you call her because she, she’s sort of a traveling doctor.

Judge: That’s not much of thing you come in here and tell us, I guess.

Phipps: Well, my attitude is, the [district court] judge got it right . . . . And as far as whether even Ricks should apply, I don’t think it should.

Judge: What do you do about Morgan?

Phipps: I don’t, I don’t, I don’t know Morgan, Your Honor.

Judge: You don’t know Morgan?

Phipps: Nope.

Judge: You haven’t read it?

Phipps: I try not to read that many cases, your Honor. Ricks is the only one I read. Oh, Ledbetter, I read Ledbetter, and I read that one that they brought up last night. I don’t know if that’s not Ledbetter, I can’t remember the name of it. Ricks is the one that I go by; it’s my North star. Either it applies or it doesn’t apply. I don’t think it applies.

Judge: I must say, Morgan is a case that is directly relevant to this case. And for you representing the Plaintiff to get up here—it’s a Supreme Court case—and say you haven’t read it. Where did they teach you that?

Phipps: They didn’t teach me much, Your Honor.

Judge: At Tulane, is it?

Phipps: Loyola.

Judge: Okay. Well, I must say, that may be an all time first.

Phipps: That’s why I wore a suit today, Your Honor.

Judge: Alright. We’ve got your attitude, anyway.

(some italics added). Oh, and in addition to showing up prepared, you should also probably avoid disparaging a judge's alma mater.

As a sanction for the attorney's "cavalier disregard for his client’s interest and for his obligation to the Court[,]" the panel ordered him to provide his client a copy of this opinion and to provide proof of service to the court.

Wednesday, April 16, 2008

SCOTUS: CSA's "Felony Drug Offense" Is Term of Art, Does Not Depend on State Classification of Offense as Felony or Misdemeanor

The good news is that fans of statutory construction get two decisions to gnaw on today. The bad news is that you've already heard about the good one.

The question in Burgess, which has produced a circuit split, "is whether a state drug offense classified as a misdemeanor, but punishable by more than one year's imprisonment, is a 'felony drug offense' as that term is used in [21 U.S.C.] §841(b)(1)(A)." The question arises because of two apparently conflicting definitions in the Controlled Substances Act:

Section 802(13) defines the unadorned term "felony" to mean any"offense classified by applicable Federal or State law as afelony." Section 802(44) defines the compound term "felony drug offense" to mean an offense involving specifieddrugs that is "punishable by imprisonment for more than one year under any law of the United States or of a State or foreign country."

The Court holds, unanimously, that the term "felony drug offense" is "defined exclusively by §802(44) and does not incorporate §802(13)'s definition of 'felony.'" It concludes that Congress defined "felony drug offense" as a term of art "without reference to §802(13)[,]" for several reasons:

First, 802(44) provides that "the term 'felony drug offense' means an offense that is punishable by imprisonment for more than one year," and generally "[a] definition which declares what a term 'means' . . . excludes any meaning that is not stated."

Second, "the term 'felony' is commonly defined to mean a crime punishable by imprisonment for more than one year." Since 802(44) defines an FDO as "an offense . . . punishable by imprisonment for more than one year[,]" there is no gap for 802(13)'s "felony" definition to fill.

Third, if Congress wanted to incorporate 802(13)'s felony definition in 802(44), it could have defined an FDO as "a felony that is punishable for more than one year . . . . " (The Court points out that Congress has nested definitions in this manner elsewhere in the U.S. Code, but distinguishes Burgess's examples of "defined words nested within defined phrases where . . . the definition of the word is embraced within the phrase, although the word is not repeated in the definition of the phrase.")

Fourth, interpreting 802(44) to incorporate 802(13) would lead to anomalies in that it would wind up excluding foreign offenses (because 802(13) refers only to federal or state offenses, whereas 802(44) refers to state, federal, and foreign offenses). It would also exclude offenses in states that don't classify offenses as felonies or misdemeanors. (The latter "anomaly" is actually pretty minor. The opinion cites only two states that don't classify: New Jersey and Maine. But it also cites a case acknowledging that New Jersey common law classifies offenses punishable by more than one year as felonies. So we're left with Maine, and given the state's low population, it's hard to imagine that its lack of misdemeanor/felony classification could affect very many 841 enhancement determinations.)

Fifth, reading 802(44) in this way does not render 802(13) superfluous because there are at least several places in the CSA that rely on the "unadorned" felony definition in 802(13).

The Court also concludes that a change in the relevant provisions in 1994 confirms its construction of the statute, but I won't bore you with the details of that.

Finally, and least persuasively, the Court declares that the rule of lenity has no application here because the statute isn't ambiguous. The decision may be unanimous, but I think it's a stretch to say there's no ambiguity at all.

(Interesting aside: the Court issued its opinion in this case just 23 days after oral argument.)

Today's Supreme Court news will likely be dominated by coverage of Baze v. Rees, the lethal-injection case, but today's decision in Begay will likely have a far bigger impact in terms of the number of cases affected.

At issue in Begay was whether felony DUI is a "violent felony" for purposes of the Armed Career Criminal Act's 15-year mandatory minimum sentence. More specifically, does felony DUI qualify under 18 U.S.C. § 924(e)(2)(B)(ii), which includes an offense that "is burglary, arson, or extortion, or otherwise involves conduct that presents a serious potential risk of physical injury to another." (emphasis added).

The answer: No. The Court concluded that, in order to give effect to every word in the definition, the "otherwise clause" must be interpreted to include only offenses that "are roughly similar, in kind as well as in degree of risk posed, to the" listed offenses. And how do we know if that rough similarity exists?

The listed crimes all typically involve purposeful, "violent," and "aggressive" conduct. . . . That conduct is such that it makes [it] more likely that an offender, later possessing a gun, will use that gun deliberately to harm a victim. Crimes committed in such a purposeful, violent, and agressive manner are "potentially more dangerous when firearms are involved." And such crimes are "characteristic of the armed career criminal, the eponym of the statute."

(internal cites purposefully, perhaps aggressively, but definitely not violently, omitted). Measured against that standard, felony DUI doesn't make the cut:

By way of contrast, statutes that forbid driving under the influence, such as the statute before us, typically do not insist on purposeful, violent, and aggressive conduct; rather, they are, or are most nearly comparable to, crimes that impose strict liability, criminalizing conduct in respect to which the offender need not have had any criminal intent at all.

(Id.) This construction is consistent with the ACCA's overall purpose, which is to address the special danger present when certain types of particularly dangerous felons possess guns:

In this respect---namely, a prior crime's relevance to the possibility of future danger with a gun---crimes involving intentional or purposeful conduct (as in burglary and arson) are different than DUI, a strict liability crime. In both instances, the offender's prior crimes reveal a degree of callousness towards risk, but in the former instance they also show an increased likelihood that the offender is the kind of person who might deliberately point the gun and pull the trigger. We have no reason to believe that Congress intended a 15-year mandatory prison term where that increased likelihood does not exist.

As Justice Scalia points out in his opinion concurring in the judgment, the majority's construction of the statute "excludes a slew of crimes from the scope of the residual clause[.]" So there's plenty of room to start litigating this issue with renewed vigor, and to attack prior decisions finding various crimes to fall within the residual clause.

By the way, why didn't Justice Scalia join the majority? As in James, he complains that the majority's test provides insufficient guidance to lower courts. Instead, he would apply the test he proposed in James: the risk of physical injury presented by the offense in question must be equivalent to or greater than the risk posed by the least serious enumerated offense, which is burglary. Justice Scalia then concludes that drunk driving doesn't present that level of risk. Although DUI is dangerous and kills thousands of people a year, it is impossible to know how serious that risk is without knowing how many instances of DUI there are in a year and those statistics aren't available. For some crimes, the severity of the risk is obvious, but that's not the case with DUI. And because one "can do more than guess as to whether drunk driving poses a more serious risk than burglary[,]" the rule of lenity kicks in and the enhancement cannot be applied.

Justice Alito, joined by Justices Souter and Thomas, dissented. He makes a number of interesting points, but his argument boils down to this: DUI is itself quite dangerous and easily fits within the literal language of the otherwise clause, and repeat DUI-ers who possess guns pose a danger just as serious as that posed by repeat burglars, arsonists, and so forth.

Finally, congrats to New Mexico AFPD Margaret Katze, lead counsel for Mr. Begay, as well as to all the others who helped on this very big win.

Monday, April 14, 2008

Cert Grant Involving Brady Violations

As SCOTUSblog reports, the Supreme Court granted cert today in a case that may further outline the scope of a prosecutor's discovery obligations under Brady v. Maryland:

The new case on prosecutorial immunity (Van De Kamp, et al., v. Goldstein, 07-854) does not involve line prosecutors. Rather, it tests whether supervisory officials in the chain of command on prosecution may be sued for damages for failure to develop policies to ensure that evidence favorable to the defense is shared with defense counsel. Basicially, the appeal by two former Los Angeles officials — a district attorney and his chief deputy – seeks immunity for all actions within a prosecution team that relate to the obligations imposed by the 1963 Supreme Court decision in Brady v. Maryland.

Friday, April 11, 2008

New Fifth Circuit Judge: Senate Confirms Dallasite Catharina Haynes

As the Houston Chronicle reports here, the Senate yesterday approved the nomination of Catharina Haynes to serve on the Fifth Circuit. Judge Haynes has previously served on the 191st District Court of Dallas County, and also worked in private practice at Thompson & Knight and Baker Botts.

Fives Suggest Consideration of Fast-Track Disparity Is Abuse of Discretion; Apply Very Robust Presumption of Reasonableness

Recall that, after Booker, the Fifth Circuit held that a district court's refusal to consider geographic sentencing disparities created by differing fast-track policies around the country does not render a sentence unreasonable, notwithstanding the statutory command in § 3553(a)(6) to consider the need to avoid unwarranted sentencing disparities. The court reasoned that disparity-avoidance is but one of the § 3553(a) factors, and that Congress implicitly authorized such disparities when it formally authorized fast-track departures in the PROTECT Act without altering § 3553(a)(6).

One might think that the Supreme Court's later decisions in Rita and Kimbrough would have called the Fifth Circuit's position into question. After all, both decisions support the idea that district courts can impose a non-Guidelines sentence based on policy disagreements with the relevant guidelines.

Nevertheless, Gomez-Herrera holds that Rita and Kimbrough do not affect its earlier decision concerning fast-track disparities. According to Gomez-Herrera, district courts are still bound by Congressional sentencing policies, and Congress intended to allow disparities resulting from fast-track programs. Consequently, that intended disparity is not "unwarranted" within the meaning of § 3553(a)(6).

But Gomez-Herrera goes even further, with this surprising declaration (dictum?):

Another way of stating this argument is that it would be an abuse of discretion for the district court to deviate from the Guidelines on the basis of sentencing disparity resulting from fast track programs that was intended by Congress. A district court abuses its discretion if its ruling rests on an erroneous view of the law. Cooter & Gell v. Hartmaxx Corp.,496 U.S. 384, 405 (1990). The Supreme Court in Kimbrough recognized and respected the sentencing disparity created by statutory mandatory minimum sentences for certain quantities of crack vs. powder cocaine. A district court ruling deviating from the Guidelines on the basis of sentencing disparity created by Congressionally mandated fast track programs only in districts approved by the Attorney General would result from an erroneous view of the law.

(emphasis added).

Think about that for a moment. Pre-Rita and Kimbrough, the Fifth Circuit held that district courts aren't required to consider fast-track disparities, but as Gomez-Herrera acknowledges, it "never held that a district court may not consider and give effect to defendant’s argument for a reduced sentence on this basis." But after Rita and Kimbrough---decisions which revealed that the scope of post-Booker sentencing discretion is broader than many courts, including the Fifth Circuit, thought it was---it would be an abuse of discretion to even consider the disparity. (Not to mention the separation-of-powers implications arising from a Congressional intent to allow the Attorney General to create disparities § 3553(a)(6) would otherwise forbid.)

And that's not the only surprising thing about this opinion. Gomez-Herrera also seems to apply a standard of review even more deferential than abuse-of-discretion to the within-Guidelines sentence in this case. Here's the pitch Gomez made in both the district and circuit courts:

Gomez-Herrera also argues that his sentence was substantively unreasonable. As he did in the district court, Gomez-Herrera asserts that several factors warranted a sentence below the Guidelines range. First, he contends that his motivation for reentry was to see his ailing father before he died. Second, he argues that he lived in the United States from the age of three months until he was deported at the age of 51, and that Mexico is an alien country and culture. This cultural assimilation, he asserts, has been recognized as supporting a downward departure. Next, he contends that the 16-level enhancement was adopted by the Commission without empirical study and that it overstated the seriousness of the offense, particularly compared to other “much more serious crimes.” For these reasons, he asserts that the sentence imposed does not properly account for the nature and circumstances of the offense or the history and characteristics of the defendant, and that it is greater than necessary to reflect the seriousness of the offense, to promote respect for the law, to provide just punishment, to protect the public and promote deterrence. Finally, he argues that the sentence subjected him to unwarranted sentencing disparity because he wasunable to avail himself of early disposition programs.

Very solid points. And here's what the court of appeals held:

As stated above [in our review of the procedural reasonableness of the sentence], the district court considered and obviously rejected these arguments as a basis for a non-Guidelines sentence. As Gomez-Herrera was sentenced within a properly calculated Guidelines range, his sentence is entitled to a presumption of reasonableness that we see no reason to disturb.

Now part of this holding may be a product of the fact that Gomez got hit with the 16-level COV bump due to a prior murder conviction. Nevertheless, the court essentially conflates procedural and substantive reasonableness, and then appears to treat the presumption of reasonableness as far more conclusive than Rita or Gall allow. If this is really what the Supreme Court had in mind, it's hard to see how Booker changed anything.